Kulbhan Singh Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:166499

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32703 of 2023

Applicant :- Kulbhan Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Krishna Dutt Awasthi Counsel for Opposite Party :- G.A.,Girja Shanker Sen

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Hon'ble Rajeev Misra,J.

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Heard Mr. Krishna Dutt Awasthi, the learned counsel for applicant, the learned A.G.A. for State and Mr. Girja Shanker Sen, the learned counsel representing first informant/opposite party-4.

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Perused the record.

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Instant application for bail has been filed by applicant-Kulbhan Singh seeking his enlargement on bail in Case Crime No.13 of 2019 under Sections 363, 376 I.P.C., Sections 3/4, POCSO Act, and Section 3 (1) (R) of SC/ST Act, Police Station-Bela, DistrictAuraiya, during the pendency of trial.

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Learned counsel for applicant contends that subsequent to the F.I.R. dated 18.12.2021, the matter was investigated and ultimately the police report under Section 173 (2) (final report) was submitted in favour of applicant. The Court concerned in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. took cognizance upon the same and simultaneously directed that the matter shall proceed as a State case. It is next contended that the prosecutrix has solemnised marriage with applicant and both were living together as husband and wife. According to the learned counsel for applicant even though the prosecutrix was below 18 years, on the

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date of her marriage with the applicant but simply on that ground the marriage shall not be void but voidable at the instance of the prosecutrix by virtue of the provision contained in Section 11 (2) of the Hindu Marriage Act. However upto this stage, no proceedings have been initiated by the prosecutrix for declaration her marriage with the applicant as void. It is further submitted that prosecutirx is residing with applicant. On the above premise, the learned counsel for applicant submits that no offence as alleged is made out against applicant. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 27.05.2023. As such, he has undergone more than two months of incarceration. In case the applicant is not enlarged on bail a happy family shall stand broken. On the cumulative strength of above, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the prosecutrix was minor i.e below 18 years on the date of marriage therefore applicant does not deserve any indulgence by this Court. However, they could not dislodged the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that, prosecutrix is a willing and consenting party, prosecutrix has solemnized marriage with applicant and they are living together as husband and wife, as such, no offence under Sections 376 I.P.C., Sections 3/4, POCSO Act, can be said to have been committed by applicant, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, in spite of above, no such circumstance could be pointed out by the learned A.G.A. and the learned counsel representing first informant from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) , the clean antecedents of applicant, the period of incarceration undergone by applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly, present application for bail is allowed .

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Let the applicant- Kulbhan Singh involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) Applicant will not tamper with prosecution evidence.

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(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison

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Order Date :- 18.8.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Kulbhan Singh v. State of U.P. and 3 Others

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Kulbhan Singh v. State of U.P. and 3 Others

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